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Red Flag Laws: Recent mass shootings prompt a bipartisan response to gun violence

September 16, 2019

The United States’ policies on gun ownership have been called into question in the wake of several mass shootings occurring across the country. The calls for action to stop gun violence have been varied, spanning from efforts to ban all weapons and firearm confiscation to mental health background checks on gun purchasers. Approximately eighteen (18) states in the U.S. have implemented red flag legislation which allows law enforcement or family members to seek a court order to, for the short term, take away firearms if they feel a gun owner is at high risk of harming themselves and others.

Lawmakers at the federal level view red flag laws as the ultimate compromise, as it is an effort that has popularity with both Republican and Democrat legislators, as well as support from President Donald Trump. In fact, Lindsey Graham (Republican) of South Carolina has introduced a bipartisan red flag proposal with Connecticut Democratic Senator Richard Blumenthal. At a local level, the Erie County District Attorney’s Office has alerted every police agency and school district in Erie County of New York State’s Red Flag Law to promote preventative action in combating gun violence in schools and in the broader community.

Lawmakers proffer that red flag laws save lives for the reason that in most instances of gun violence, there were obvious warning signs that the shooter presented a serious threat before the shooting. According to Everytown for Gun Safety Support Fund, a non-partisan organization dedicated to reducing and understanding gun violence in America, red flag laws “give key members of the community a way to intervene before warning signs escalate into tragedies.” The non-profit establishes that in 51% of mass shootings, the perpetrator displayed dangerous warning signs before committing targeted violence.

The Basics

Also known as extreme risk protection orders (ERPO Laws), Red Flag Laws are legislative gun control measures which permit courts to issue orders to provisionally take possession of the firearms of individuals who are at high risk of using guns to hurt themselves or others.  

Effective August 24, 2019, in New York State, ERPO Laws are orders by a judge to (1) not possess a shotgun, firearm, or rifle; (2) not buy a shotgun, firearm, or rifle; (3) not attempt to have or buy a shotgun, firearm, or rifle; and (4) give up any firearms, rifles or shotguns.

The petitioner starts a case by filing a formal, written application to the Supreme Court, and a temporary ERPO is decided by a judge on the same day. Further, a hearing will be scheduled so that the judge can decide if a final ERPO will be ordered for up to one (1) year. 

Who Can Ask for an Extreme Risk Protection Order

According to the New York Court System, the petitioner can be:

  • Police officers
  • District Attorneys
  • Family or household members. This includes:
    • people legally married or divorced
    • people with a child in common, including adopted children
    • people related by marriage, like in-laws
    • people related by blood, like brothers, parents, cousins
    • unrelated people who live, or have lived together for periods of time
    • unrelated people in, or were in an intimate relationship (current or former), like same-sex couples and teens who are dating
  • School administrators. This includes anyone chosen by the school to start the case, like, as teachers, guidance counselors, school psychologists, school nurses, and coaches.

What an ERPO Cannot Do

An ERPO can’t order a person to:

  • Stop threatening or committing abuse
  • Stay away from your home, job, or school
  • Have no contact with you or others
  • Follow custody orders
  • Pay child or spousal support

An ERPO has no criminal charges or penalties (New York Court System).

If you have identified an individual who is showing signs of distress and a willingness to self-harm or hurt others through gun violence, please contact local law enforcement. To discuss your legal options, please contact Tiveron Law Attorneys at Law, 716-636-7600.